Jenkins v. Board of Parole

309 P.3d 1115, 258 Or. App. 430, 2013 WL 4760998, 2013 Ore. App. LEXIS 1077
CourtCourt of Appeals of Oregon
DecidedSeptember 5, 2013
DocketA144545
StatusPublished
Cited by3 cases

This text of 309 P.3d 1115 (Jenkins v. Board of Parole) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins v. Board of Parole, 309 P.3d 1115, 258 Or. App. 430, 2013 WL 4760998, 2013 Ore. App. LEXIS 1077 (Or. Ct. App. 2013).

Opinions

NAKAMOTO, J.

On judicial review of a final order of the Board of Parole and Post-Prison Supervision (the board) postponing his scheduled release date from prison under ORS 144.125(3), petitioner asserts that the order is not supported by substantial evidence and reason. The board contends that the first sentence of ORS 144.335(3), added in 1999, excuses the board from a substantial-reason requirement. We conclude that the board’s reading of the statute runs counter to its text, context, and legislative history. As we did in Castro v. Board of Parole, 232 Or App 75, 220 P3d 772 (2009), we hold that ORS 144.335(3) requires the board to provide an inmate with some explanation of the rationale for concluding that the inmate’s parole date should be postponed. Thus, we reverse the board’s order for lack of substantial reason and remand.

After holding an exit interview with petitioner, the board issued an order postponing petitioner’s scheduled parole release date for 24 months pursuant to ORS 144.125(3)(a). That statute authorizes the board to defer parole release dates for inmates who suffer from a present severe emotional disturbance (PSED).1 The board’s order states, in pertinent part:

“The record indicates that the offender committed his/ her crime(s) prior to/on or after 05/19/1988.
“The board has received a psychological evaluation on inmate dated 06/30/2008.
“Based on the doctor’s report and diagnosis, coupled with all the information that the board is considering, the board concludes that the inmate suffers from a present severe emotional disturbance that constitutes a danger to [432]*432the health or safety of the community. The board has considered this matter under the laws in effect at the time of the commitment offense(s) and all other applicable rules and laws.
“The board defers release date for 24 months for a projected parole release date of 03/05/2011, for a total of 378 months. A review will be scheduled in 09/2010 with a current psychological evaluation.”

(Capitalization altered.)

On judicial review, petitioner contends that the board was required, but failed, to explain its reasoning as to its two conclusions, namely, (1) that he suffered from a PSED that made him a danger to the community and (2) that his scheduled release date should be deferred. He first asserts that the order’s deficiency violates the requirement in ORS 144.135, which requires the board to “state in writing the detailed bases of its decisions” regarding parole release dates.2 Second, he relies on a subsection of the Oregon Administrative Procedures Act (APA), ORS 183.482(8)(c), made applicable to our review of board orders under ORS 144.335(3), that a reviewing court “shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record.” Third, he argues that we must reverse based on our decision in Castro, in which we held that the board’s orders must demonstrate substantial reason.

The board contends that Castro is not controlling because in that case we did not address the 1999 amendment to ORS 144.335(3) that, in its view, exempts the board from providing substantial reason for its decisions. That amendment resulted in what is now the provision’s first sentence: “The order of the board need not be in any special form, and the order is sufficient for purposes of judicial review if it appears that the board acted within the scope of the board’s authority.” Given the state’s contention that Castro does not control this case, we begin with a review of our decision in Castro.

[433]*433As in this case, the petitioner in Castro challenged the board’s order postponing his parole release date on judicial review by arguing that the order was not supported by substantial evidence and reason. 232 Or App at 77. We held that ORS 144.335(3) requires review for substantial evidence and reason. Id. at 83. We noted that the second sentence of the statute plainly states that “this court ‘may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8).’” Id. at 82. And, we noted that ORS 183.482(8)(c), in turn, provides that:

“The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

Id. at 82-83 (internal quotation marks omitted). We stated that ORS 183.482(8)(c) requires “[substantial evidence review” and “requires that the board provide ‘some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached.’” 232 Or App at 83 (quoting Martin v. Board of Parole, 327 Or 147, 157, 957 P2d 1210 (1998)). The Martin case on which we relied involved a challenge to the board’s order imposing a special condition of post-prison supervision, but construed a statutory requirement that, like the second sentence of ORS 144.335(3), provided for court review of the order “on the same basis as provided in ORS 183.482(8).” Martin, 327 Or at 149, 155 (internal quotation marks omitted).

We reversed and remanded in Castro, agreeing with the petitioner that the board’s order stated a mere conclusion and “that this case falls into the category that, under Armstrong [v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988)], requires the board to demonstrate its reasoning.” Id. at 85. We explained that the relevant portion of the board’s order

“is an announcement, not an explanation. It gives us nothing to judicially review. Our duty is to evaluate the board’s logic, not to supply it. Drew, 322 Or at 499-500 (review for substantial reason is based on the order itself, not our independent review of the record).

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Related

Jenkins v. Board of Parole & Post-Prison Supervision
335 P.3d 828 (Oregon Supreme Court, 2014)
Jenkins v. Board of Parole
Oregon Supreme Court, 2014
Grimm v. Board of Parole
310 P.3d 736 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
309 P.3d 1115, 258 Or. App. 430, 2013 WL 4760998, 2013 Ore. App. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-board-of-parole-orctapp-2013.